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Former INS Attorney David Martin Discusses Asylum Law Issues in the Elian Case May 10, 2000 More chat transcripts ------------ Edward Lazarus - Medical Marijuana Edward Lazarus - Bush/Supreme Court Anthony Sebok - IBM/Holocaust Julie Hilden - KKK/Freedom of Speech Charles Compton - Microsoft John Dean - Rich Pardon Kevin Grierson - Napster Marci Hamilton - Napster Robert Precht - Embassy Bombings Yonah Alexander - Lockerbie Jonathan Nelson - Embassy Bombings John Dean - Bush Transition Victor Williams - Elections/Supreme Court Edward Lazarus - Elections/Supreme Court Michael Dorf - Elections/Recount John Dean - Elections/Watergate Catherine Christophillis - Drugs/Pregnancy Jennifer Granick - Drugs/Pregnancy Kevin Grierson - Napster Trial Ed Masry - Erin Brockovich Piere Thomas - Wen Ho Lee Lauren Gelman - Internet/Speech Anthony Sebok - Firestone Tires Neal Katyal - Clinton Sanford Levinson - Election Ruti Teitel - Ousted Leaders David Thibodeau - Waco Michael Dorf - Supreme Court Byron Sage - Waco David Linder - Scopes trial Marci Hamilton - Supreme Court Thomas Jurgensen - Human Genome Jeffrey Rosen - Privacy issues Solomon Wisenberg - Death penalty Ted Conover - Sing Sing prison Matthew Glavin - Clinton disbarment Anthony Sebok - Tobacco litigation Douglas Lichtman - Music copyright David Martin - Elian case

University of Virginia law professor David Martin, a former U.S. Immigration and Naturalization Service lawyer, joined CNN.com for a chat to discuss the immigration law issues the in the Elian Gonzalez case. The chat was presented on Wednesday, May 10, by FindLaw.com. CNN provided a typist for Martin. The following is an edited transcript of the chat:

Chat Moderator:What are the specific legal immigration issues surrounding the Elian Gonzalez case?

David Martin: The main issue has to do with an asylum claim. It was filed on behalf of Elian by his great-uncle Lazaro Gonzales. At the same time, Elian's father, Juan Miguel Gonzalez, said he did not want any applications filed on behalf of his child. So INS had to decide whether to consider the asylum application on the merits. It is important to note that INS sometimes will consider applications by children or on behalf of children even against the parent's wishes.

But they recognize an issue of where to draw the line. They interviewed Juan Gonzalez in Cuba and found that he was a loving father. They looked at the risk of persecution claimed in the asylum applications and found there was no conflict of interest. Therefore, they let the father speak for the child.

So they did not go ahead to reach the merits of the asylum claim. In court, the relatives say they need a full hearing on the asylum claim and that is what the parties argued to the Court of Appeals.

Question from Snowbare: What is your opinion on the legality of the INS's removal of Elian Gonzales. ... there is some question about the issuing of the warrant.

David Martin: I believe the warrant was valid and that the INS acted appropriately. The INS and the attorney general had tried for weeks, for months, to work out a peaceful transition of custody. The family in Miami refused to go along and the great-uncle even said at one point, "INS will have to come and take the child by force."

INS and Attorney General Janet Reno really wanted to avoid that, but they also felt a responsibility to reunite parent and child. In my view, they obtained a valid search warrant because the law specifically allows for a search warrant to recover someone who is "unlawfully restrained." And Elian fit that description.

Question from Christine: Why was Elian not returned to his father as soon as it was realized he existed? Isn't it understood that parental rights supersede most immigration laws in most countries?

David Martin: INS needed to take some time to determine that this person was in fact the father and that he was not an abusive or neglectful parent. Ordinarily, in such cases the law tries to reunite parent and child quickly.

But INS has recognized that sometimes it should consider an asylum application by a child against the wishes of a parent. That is why it took longer for INS to reach its initial decision. It took about six weeks. Then that decision was challenged in federal court and INS decided to leave Elian in the custody of his relatives while the initial court proceedings took place. You have to remember that this was at a time when the father was still in Cuba and courts are reluctant to allow possible asylum applicants to leave the country until a court case has been heard.

After Elian's father came to this country in April, the situation changed. INS then moved quickly to terminate the great-uncle's custody and eventually recovered Elian by force for the father.

Question from Thrak: Does international law come into play during an asylum hearing? If so, how?

David Martin: Yes, international law basically establishes the standard for ruling on an asylum claim. The United States is a party to a United Nations refugee treaty that provides protection for people who meet a specific standard of risk.

Asylum applicants have to show a well-founded fear of persecution on account of race, religion, nationality, or political opinionmembership in a particular social group. U.S. law has incorporated those standards and asylum officers and immigration judges apply them every day.

It is important to note that this is not a general judgment about human rights conditions in the home country. Instead, INS looks at the specific risks that an individual applicant may face.

Question from genie3: Am I correct when I say that if Juan Gonzales chooses to take his son to an airport and fly back to Cuba now, the United States would, by law, not be able to stop him?

David Martin: No,that is incorrect. There is a court order directing that Elian remain in the country until further order by the court of appeals. In addition, INS has issued a 'departure control order' that also requires that Elian remain in the country. The government could use that order as a basis for stopping an airplane or a ship.

Question from Ariana: How realistic are the Miami relatives' hopes of keeping Elian here?

David Martin: In the long run I think the hopes are slim because it is unlikely that an immigration judge or a court would find that he faces a risk of persecution in Cuba within the meaning of the asylum law. But it is a closer question whether INS needs to have a full asylum hearing on that issue.

It is possible that the the court of appeals could rule in the Miami relative's favor on that limited issue. Then we would go through several more months of a hearing and review of the asylum decision. But I think the right ruling is for the court of appeals to approve what INS has already done. Although it is a novel question, INS did consider the matter carefully before deciding that the father speaks for the child here. Under usual principles of administrative law, the courts would normally defer to an administrative decision of this kind, and I believe they should do so here.

Question from DawnL: How seriously do courts take a document that has been signed by a 6-year old child who cannot read?

David Martin: Normally, courts place very little if any weight on such a document. In the end I don't think the court of appeals will place much weight on it either. The debate over what Elian really wants has been a bit of a sideshow. The real dispute in the court of appeals is over whether there are objective indications of risk to Elian such that the asylum claim should be given a full hearing even over the father's objections.

Question from denise: Can basically anyone file for asylum then on behalf of the child, particularly when a great-uncle and cousin would have no legal standing in the first place?

David Martin: That is really the question in this case. INS said no. They said they had to carefully decide whether to consider such an application and they found that they would not in these circumstances. I hope the court of appeals will not issue a ruling that opens the door to filings by virtually anyone on behalf of a child who is in this country. As I said earlier, I don't expect the court to rule that way. The real issue is a 'line drawing' question.

Sometimes INS agrees to consider an asylum application against the wishes of a parent but its standards seem to discourage such an application.

Question from Jim: Does the INS normally look into a parent's background to make sure the parent is not abusive? The INS becomes a social worker for kids who arrive without their parents.

David Martin: INS does pay some attention to those issues under its regulations but it is clear that this case is unique. It has gotten far closer scrutiny than is normal, including on the issue of parental fitness.

Question from Snowbare: How does the settlement of this case affect other cases where U.S. children are being kept by other countries. There is one case, which is at least eight years old, where the father has been attempting to get his two children back from German custody.

David Martin: Yes, I am aware of that case. Any delay in returning a child to a parent potentially complicates U.S. efforts in the 'reverse' situation when an American citizen is trying to recover custody of children who have been taken to a foreign country. That has been a consideration for the Justice Department and the State Department in deciding on this case.

Question from cosmo: Doesn't the fact that Cuba is a communist country add weight to any asylum hearing?

David Martin: The fact that Cuba has a record of serious human rights abuses certainly adds some weight to an asylum claim. That is one of the subjective indicators that INS considered in deciding whether to go ahead with an asylum hearing. But there is no blanket rule leading to a grant of all asylum claims from communist countries or from other serious human rights- abusing countries. Asylum is a case-by-case inquiry, looking at the specific risks the applicant would face.